Final DREAM Vote Set for Saturday

On Thursday night Dec. 16, Senate Majority Leader Reid filed cloture on the Dream Act (H.R. 5281) setting the bill up for the critical "cloture" vote in the Senate expected on Saturday.  The Senate will need 60 votes for Dream to move forward. 

Washington (CNN) -- Senate Democrats conceded Thursday they don't have the votes to pass the DREAM Act, a bill that would have offered a path to citizenship for some illegal immigrants who entered the United States as children.
Democrats voted to pull the measure from consideration, a move that jeopardizes the chances for passing the hotly contested bill during the current lame-duck session of Congress that ends in early January.

DREAM act

Yesterday the House passed the DREAM Act on a vote of 216 to 198. The DREAM Act was added as an amendment to H.R. 5281. The text of the House bill was filed on Monday night as H.R. 6497.

Senate to Vote TODAY at 11ET

DREAM Act: Latest Version and News

The DREAM Act could come up for a vote Wednesday. The House states there are enough votes to pass. Senate actions depend on tax bill because Republicans say they will block everything this session if they don't get what they want on tax bill.

The reason it has a real chance of passing: Outgoing Congressman have less reason to vote along party lines and Democrats know that with the shift of power coming January, this may be the last chance.

There was a new version introduced last week in the Senate to try to get more Republican votes:

n      Must have entered the United States before the age of 16

n      Must be between the ages of 12 and 30 at the time of application

n      Requires applicants to pay all taxes. English language and civics requirements typically required for naturalization

n      Good moral character requirement back to the date the alien entered the United States

n      Must have been present in the United States for at least 5 consecutive years prior to enactment of the bill

n      Provides a "safe harbor" from removal

n      Requires 1 year to pass after it becomes law to become effective

If the DREAM Act passes as proposed, an undocumented individual meeting those qualifying conditions stated above, would have to do the following:

n      Apply for the DREAM Act and pay the fee (no estimate as to what it could be, 245i fee was $1000)

n      Creates conditional nonimmigrant status for 10 years, followed by 3 years of LPR status prior to application for naturalization

n      Once approved and granted, the individual would have to do one of the following:

n      Enroll in an institution of higher education in order to pursue a bachelor's degree or higher degree or Enlist in one of the branches of the United States Military

n      Within x years of approval for conditional status, the individual must have completed at least two (2) years of one of the options outlined in the previous step

n      Once x years of conditional status has passed, the individual will then be able to apply for Legal Permanent Residency (dropping the conditional part) and consequently will be able to apply for United States Citizenship, which requires 5 years of permanent residency

Of course, the terms and conditions will most likely change if it is passed by the House and Senate, because both versions have to be reconciled, but this is the current version so it gives us a good idea of what can happen.

Students who do not complete the requirements will be disqualified.  Estimates show 2 million people would qualify under this ACT, but estimates also show that more than 60 percent -- nearly 1.3 million -- would not obtain legal status because of financial limitations, competing work and family time demands, low educational attainment and limited English proficiency.

Individual Taxpayer Identification Number

Tax Implications on Certain Immigrants and Non-Immigrants

ITIN’s
Many believe that if they do not have a social security number, they are exempt from taxation. The ITIN (Individual Taxpayer Identification Number) is a 9-digit tax processing number issued by the IRS. ITIN’s are issued regardless of immigration status because both resident and non-resident aliens may have U.S. tax return and payment responsibilities under the Internal Revenue Code. ITIN’s do not authorize work in the U.S. or provide eligibility for social security benefits. An original passport is one of the 13 types of documents that are acceptable proof of identity and foreign status.

IRS Publication 1915 states the following question: “Can I get an ITIN if I am an undocumented alien?” And it gives the answer: “Yes, if you are required to file a U.S. federal income tax return or qualify to be listed on another individual’s tax return, you must have either a valid social security number or an ITIN. If you are an undocumented alien and cannot get a social security number, you must get an ITIN for tax purposes.”

Resident Alien
An individual who is not a U.S. citizen is classified as a resident alien if he meets 1)the lawful permanent resident test, 2)the substantial presence test, or 3)elects to be treated as a resident. The substantial presence test uses a complicated formula under which the individual is treated as a resident alien if they are present in the U.S. a) for at least 31 days during the current year, and b) for a total of 183 adjusted days under the formula.

Non-Resident Alien
On the other hand, income of a non-resident alien that is not effectively connected with the conduct of a U.S. trade or business is generally exempt from U.S. income tax unless it is from sources within the U.S. and falls within the definition of “fixed or determinable annual or periodical gains, profits, and income” (otherwise known as “FDAP”). FDAP includes wages and compensation, interest, dividends, rents and royalties received from U.S. sources, but does not include capital gains and other income realized from the sale of property. The tax on FDAP is applied at a flat rate of 30 percent and is usually collected by the payor of income who withholds this tax from the nonresident alien and remits the tax to the IRS. No deductions are allowed in arriving at the taxable amount.

Salaries, wages and compensation from U.S. sources are included in FDAP and these payments are subject to either (i) the 30 percent withholding tax, or (ii) wage withholding on the same basis as U.S. citizens and residents. Wages, salaries and compensation are U.S. source if such payments relate to services performed in the U.S. However, if such compensation does not exceed $3,000 for a tax year the income is treated as foreign source, and not subject to withholding, if (1) the nonresident is temporarily present in the U.S.; (2) the nonresident is not present in the U.S. for more than 90 days during the tax year; and (3) the employer is either a foreign person not engaged in business in the U.S., or is a foreign office of a U.S. employer. Most students will fail to qualify for this exemption. Still, because the performance of services in the U.S. generally gives rise to the existence of a U.S. trade or business (and because nonresident student aliens holding F, J or M visas are always considered engaged in a U.S. trade or business), payments for such services are often not subject to the withholding tax and are instead taxed under the effectively connected income rules.

Income of a nonresident alien that is effectively connected with the conduct of a U.S. trade or business (otherwise known as “effectively connected income” or “ECI”) is subject to taxation on a “net basis,” meaning that the nonresident may take into consideration certain allowable deductions when computing taxable income. Additionally, tax is payable following the close of the tax year at normal, graduated tax rates.
Items ordinarily included in FDAP are instead treated as ECI if one of two tests is satisfied. The first test is satisfied if the FDAP type income arises from assets used or held in the conduct of the U.S. business. The second test is satisfied if the activities of the U.S. trade or business were a material factor in producing such income.

The U.S. has income tax treaties in effect with many countries. If you are a resident or citizen of such a country you may qualify for certain benefits that reduce or eliminate the need to withhold income or employment taxes.

Foreign Students
When determining the impact of U.S. income taxes on a foreign student, the analysis always begins with determining whether a student is a “resident alien” or “non-resident alien” for tax purposes.

Since most school years start in August or September, most foreign students will likely not meet the substantial presence test above during their first year. Also, there is an exemption to the substantial presence test for students. A special form needs to be filed with the IRS to verify this exemption. If a person is determined to have violated their F, J, or M visa according to the IRS, they can lose this exemption. There are several exceptions to this exemption, so please call us at 281-340-2074 with any questions.

Taxable scholarships and grants received by nonresident aliens are subject to the withholding tax if the payor of the scholarship or grant resides in the U.S.; however, the rate of tax is reduced to 14 percent. Generally, scholarships and grants are taxable to the extent not used for qualified expenses, which include tuition and fees required to enroll in school. Therefore, amounts used for living expenses are generally taxable. To the extent a scholarship or grant is provided by your educational institution, the school may actually withhold tax from that portion of the scholarship or grant payable towards expenses such as room and board. Ordinarily, nonresident students admitted to the U.S. under F, J or M visas that receive income from wages, tips, scholarships and grants are subject to tax as if such income is ECI.

Foreign students who are treated as resident aliens are taxed on their worldwide incomes in a manner identical to that of U.S. citizens. Annual income tax returns must be completed and income tax should be paid to the U.S. government.

In Summary
Non-Citizens with U.S. source income should always consider consulting with a qualified tax professional as the tax rules affecting these groups is unfortunately very complex.

Rehan Alimohammad is an Attorney and CPA.  Our office handles all tax law and immigration law issues.  In the past year we have successfully trained over 200 people, including Attorneys, CPA’s, and Enrolled Agents, on how to successfully resolve cases with the IRS and State Tax Agencies.  Please visit our website at www.attorneyrehan.com, or call our offices at (281) 340-2074 or (800) 814-3920.

Disclaimer:  This article is not meant as specific advice regarding a person’s individual case.  An attorney should be consulted.  This article does not create an Attorney-Client relationship.   Any tax information or written tax advice contained herein (including any attachments) is not intended to be and cannot be used by any taxpayer for the purpose of avoiding tax penalties that may be imposed on the taxpayer.  (The foregoing legend has been affixed pursuant to U.S. Treasury Regulations governing tax practice.)

Maintain Adjustment of Status

Maintaining Adjustment of Status

A permanent resident remains an alien in the United States.  Therefore, it is still possible for a legal permanent resident (green card holder) to lose his or her permanent resident status. 

There are several ways in which a permanent resident can lose their adjustment of status. Some of these ways are described below. 

Permanent Resident Abandons Residence

If a legal permanent resident (LPR) leaves the U.S. and it is decided that they have abandoned residence here, they may lose their status. Loss of LPR status could occur if the LPR accepts a permanent job abroad, if the LPR stays outside the U.S. for more than one year without a valid re-entry Permit, or if the LPR is otherwise found to have abandoned the PR's residence in the U.S. 

In determining whether you have abandoned your American residence, the DHS will consider a number of factors.  You may be found to have abandoned your permanent resident status if you:

• Move to another country intending to live there permanently.
• Remain outside of the U.S. for more than one year without obtaining a reentry permit or returning resident visa. However, when determining whether your status has been abandoned, any length of absence from the U.S. may be considered, even if it is less than one year.
• Remain outside of the U.S. for more than two years after issuance of a reentry permit without obtaining a returning resident visa.
• Fail to file income tax returns while living outside of the U.S. for any period.
• Declare yourself a “nonimmigrant” on your tax returns.

Immigrants may lose resident status when they abandon the United States as their permanent home. Without the support of a continuing legal resident status, the green card becomes invalid even if the expiration date has not passed yet. Immigrants should consult an attorney to ensure that their travel or other plans do not legally indicate an intention to abandon resident status.

Criminal Convictions

You may also lose your permanent resident status if you are convicted of a crime involving moral turpitude or other serious offenses. The quickest path to deportation is conviction of a serious crime. Serious crimes include, but are not limited to, those involving moral turpitude, controlled substances, and prostitution. Minor drug offenses may result in loss of permanent resident status as well. Due to the importance of the green card, if a holder is charged with a crime, they should consult an attorney and seek professional legal help immediately.  And, if not

immediately picked up by DHS or placed in removal proceedings, you should definitely consult an attorney before traveling outside of the country.  Often times, DHS is not aware of a person’s crime until they travel and attempt to re-enter.

Examples of crimes that may affect your permanent resident status include, but are not limited to:

·         Crimes of Moral Turpitude – This covers many types of crimes and is usually a crime with an intent to steal or defraud; a crime where physical harm is done or threatened; a crime where serious physical harm is caused by reckless behavior; or a crime of sexual misconduct.  This definition is changed almost daily by the courts and depends on the particular state law that is violated.

·         Multiple Criminal Convictions

o   Conviction of two or more offenses regardless of whether the conviction was in a single trial, for which the combined sentences to confinement/jail were five years or more.

o   Conviction of two or more crimes involving moral turpitude, not arising out of a single scheme.

·         Serious Crimes including the following:

o   A crime defined as an “aggravated felony,” (under Immigration Law) which includes crimes of violence that are felonies with a 1-year prison term

o   Murder

o   Terrorist activities

o   Rape

o   Sexual assault on a child

o   Trafficking in drugs, firearms, or people

o   High Speed Flight – Non-citizens convicted of a crime relating to high speed flight from an immigration checkpoint

o   Drug Abusers and Addicts

o   Prostitution

Lack of Eligibility for Permanent Resident

You may also lose your status if it is determined that you were ineligible for permanent resident status at the time you received it. This can happen if you received your permanent residence through fraud, etc. 

Losing U.S. Citizenship

There are a few ways in which US citizenship can be lost including:

• Serving in the armed forces of a foreign country if those armed forces are engaged in hostilities against the US
• Making a formal renunciation of US citizenship before a US consular officer or diplomat in a foreign country
• Committing an act of treason against the US

Each of these acts, however, must have been performed voluntarily and with the intent for renouncing that citizenship.  Note, that becoming a citizen of another country (dual citizenship) does not lose a person’s U.S. citizenship unless certain strict requirements are met.

Rehan Alimohammad is an Attorney and CPA.  Our office handles all tax law and immigration law issues.  In the past year we have successfully trained over 200 people, including Attorneys, CPA’s, and Enrolled Agents, on how to successfully resolve cases with the IRS and State Tax Agencies.  Please visit our website at www.attorneyrehan.com, or call our offices at (281) 340-2074 or (800) 814-3920.

Disclaimer:  This article is not meant as specific advice regarding a person’s individual case.  An attorney should be consulted.  This article does not create an Attorney-Client relationship.  

Connection Between Immigration and Criminal Law

Immigration and criminal law are two completely separate areas of law that are occasionally intertwined.  Unfortunately for many immigrants, the potential immigration implications of a criminal conviction are often overlooked.  A seemingly minor criminal offense can have devastating immigration implications.  As a result, it is extremely important to be aware of any immigration implications when pleading to a criminal matter, or facing potential criminal penalties.  This article will discuss the immigration implications that stem from common criminal issues.

Domestic Violence

Domestic violence crimes can be grounds for being removed from the United States if they are classified as crimes of violence.  Under some states’ criminal law, for a domestic violence crime to be considered a crime of violence the defendant must intentionally, knowingly, or recklessly cause bodily injury to another in the form of physical pain, illness, or any impairment of physical condition. 

Domestic violence offenses are often committed against a spouse, an individual with whom the person shares a child, an individual who is living with or has lived with the person as a spouse, or a person who is similar to a spouse.  Domestic violence crimes can also qualify as crimes involving moral turpitude where the crime involves bodily injury to one’s spouse or family member. 

Drug Offense

Almost any drug related conviction will render an alien inadmissible to the United States.  The only exception is a single offense of simple possession of 30 grams or less of marijuana for one’s own personal use.  Even if the controlled substance violation is a low-level misdemeanor, an alien can still be exposed to severe immigration implications.  Federal courts have held that two convictions of simple possession of marijuana will qualify as an aggravated felony subjecting an alien to deportation. 

Assault

Unless classified as a crime of violence, simple assault and battery usually does not qualify as a crime involving moral turpitude or an aggravated felony.  However, aggravated assault and battery can be classified as a crime involving moral turpitude or an aggravated felony.  To be an aggravated assault or battery case, typically the defendant would have to cause serious bodily injury on the victim or use or exhibit a deadly weapon during the commission of the crime.  A conviction for an aggravated assault or battery may render an alien inadmissible.  

Theft

Theft crimes are very common, but can be potentially disastrous to one’s immigration status depending on the classification of the theft offense.  Theft crimes involve the criminal intent to deprive the owner of their property and therefore are considered to involve moral turpitude.  Under certain states’ law, a theft crime involving less than $50 of stolen property is considered a Class C misdemeanor.  A theft crime involving stolen property worth less than $500 but more than $50 is considered a Class B misdemeanor for which the terms of punishment can be as much as 180 days in jail.  A theft crime involving stolen property of more than $500 but less than $1,500 qualifies as a Class A misdemeanor, invoking a maximum prison sentences of one year.

Being convicted for a theft offense where the term of imprisonment is at least 1 year qualifies as an aggravated felony under immigration law.  As a result, if an alien is convicted of Class A misdemeanor theft, they could be rendered inadmissible as a result of committing an aggravated felony or a crime involving moral turpitude. 

DWI

A single alcohol related offense will typically not trigger serious immigration implications.  However, a pattern of alcohol related crimes can make an alien inadmissible for health related grounds.  For immigration purposes, a conviction for driving while under the influence of alcohol (DWI) can be especially significant if one is a green card holder attempting to apply for naturalization.

An essential requirement for becoming a naturalized citizen is establishing good moral character during the preceding five years prior to applying for citizenship.  A single DWI conviction during that period could prevent an alien from gaining citizenship, and multiple DWI convictions during the five year statutory period would almost certainly prevent an alien from establishing the good moral character requirements necessary to naturalize.

Conclusion

While criminal and immigration law are two unique areas of law, it is not uncommon for them to occasionally merge.  Therefore, when facing the prospects of an impending criminal matter while your immigration status is temporary, not secure, or even if you’re a green card holder and plan to travel outside of the US, it is critically important to be aware of the potential immigration implications.

Rehan Alimohammad is an Attorney and CPA.  Our office handles all immigration law issues and tax law. Please visit our website at www.attorneyrehan.com, or call our offices at (281) 340-2074 or (800) 814)-3920.

Disclaimer:  This article is not meant as specific advice regarding a person’s individual case.  An attorney should be consulted.  This article does not create an Attorney-Client relationship.